All people are equal under the law, but the provisions relating to prosecution sanctions in India would suggest that some people are more equal than others. Section 19 of the Prevention of Corruption Act prevents courts from taking cognizance of offences allegedly committed under the Act by a public servant without prior sanction of the government. And Section 197 of the Code of Criminal Procedure lays down the general requirement of prior sanction while prosecuting public servants. Such provisions were conceived to ensure that public servants are not harassed and their work not stymied by vexatious and frivolous complaints. But in practice, these protective measures have functioned as a shield against prosecution, encouraging dishonest bureaucrats and ministers to flout the law with impunity. The Supreme Court's verdict on Tuesday, in a case related to the 2G scam, contains two important rulings relating to prosecution sanctions. First, by holding that Janata Party President Subramanian Swamy had the locus standi to seek sanction to prosecute former Telecom minister A. Raja, the Court has empowered all citizens to press for action against those public servants suspected of corrupt practices. Secondly, the Court has laid down that sanction for prosecution would be deemed to have been granted if the competent authority fails to take a decision within a period of four months. This is in broad consonance with the directives in the landmark Vineet Narain case, where the Supreme Court had ruled that while a maximum of three months for grant of sanction must be strictly adhered to, an additional one month may be allowed in cases where consultation with the Attorney General is required.
The sanction is routinely denied; in cases where it is granted, it is often after considerable delay. In the 2G spectrum scandal, for instance, Mr. Swamy wrote to the Prime Minister in November 2008 seeking sanction to prosecute Mr. Raja only to be informed six months later that this would be premature as the CBI was still investigating the matter. While Tuesday's ruling is a huge setback to the UPA, its real significance lies in the attention it has drawn to a larger question — should prior sanction be required to prosecute public servants at all. Surely, the decision about whether a particular prosecution is vexatious or not is better left to the judiciary. Significantly, the Lokpal and Lokayutas Bill 2011, passed by the Lok Sabha two months ago, had dispensed with prior sanction for launching prosecution in cases inquired into by the Lokpal. The idea that the law must differ for public servants and private citizens is an anachronism, one that has no basis in principle and has no defence in practice.
Keywords: 2G spectrum scandal, A. Raja, Prevention of Corruption Act, 2G scam, sanction for prosecution, political corruptions, Supreme Court
Unfortunately in the world's largest democracy, India there is no time bound within which a judgement should be given. Loopholes in laws make the ministers and bureaucrats led a "carefree" life even when they have serious charges against them. This landmark judgement by the supreme court calls for stricter laws to be made so that sanctions against corrupt people are granted quickly after proper and impartial inquiry.
I feel that the aspect of practical utility should be added as a
parameter in examining whether a particular case should proceed. It is
no secret that we have a dearth of effective officials, both in the
legislative as well as the executive, and also in the judiciary. If
someone proves quite good at his work, which almost invariably seems
to involve rubbing someone else in power the wrong way, then a minor transgression on his part should not attract dismissal or heavy
penalties. It should be considered if the initiation of the lawsuit
creates more problems than it solves.
That this is a genuine problem is shown by the impeachment of Justice
S Sen. While its no argument, both the facts he stated, that there are
judges with more serious allegation against them, and that he was
being sacrificed for public satisfaction are not totally unbelievable.
And we have the much more serious case of the K'taka Lokayukta. That's
why I feel the author isn't correct.
The delay in according a sanction for prosecution in case of a bureaucrat or a Ministers only shows government's complicity in covering up the scandals.
The requirement of sanction provision was introduced to prevent false and vexatious prosecutions based on false and concocted complaints. Such a sanction is necessary especially in "trap" cases where the police may act upon false complaints and get innocent and honest employees trapped. Here comes the sanctioning provision, when the higher authorities are supposed to examine the full records of investigation, the employees character records etc and arrive at a reasonable conclusion. At this stage a honest employee can be saved from vexatious and ruinous prosecution. Whether it is practically done by the Government higher-ups is a different matter -for lowly employees the sanction is granted immediately and the so called elite higher ups are saved by misusing the provision. Hence it is not correct to say the sanctioning provision should itself be scrapped. It is better if it is granted/refused within a time frame and the power is properly exercised.
@Anil.P - JOHN LOCKE said:
Sec. 199. “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage.” Sec. 202. “Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, ... may be opposed, as any other man, who by force invades the right of another.” Sec. 203. “[Will this] unhinge and overturn all polities, and, instead of government and order, leave nothing but anarchy and confusion[?]” Sec. 204. “To this I answer, that force is to be opposed to nothing, but to unjust and unlawful force; ... and so no such danger or confusion will follow, as is often suggested:”
TWO TREATISES OF GOVERNMENT,1688
While the 4 month timeline is welcome, the solution does not lie in doing away with the requirement of a sanction. The machinery of the government and public enterprises will grind to a halt. A citizen denied a bank loan could file a case alleging discrimination or even corruption. Multiply this a few hundred times and no bureacrat will take any decision without 'prior approval' because they will be damned if they did and damned if they didnt. No precedences would imply no decisions or new ideas. Let us not throw away the baby with the water
The court's judgement in this case is one more nail in the coffine of the Indian state. Step by step we are reducing the power of 'state'. It is our way of thinking to find easy solutions and rejoice them. If any individual ( minister or bureaucrat) misuses his power then the solution we offer is to reduce power. we forget that in the process we are reducing the power of State. We are equating individuals with the Instituional positions. Instead of punishing individuals ( as per system) we are changing the basic foundations of working of state. We must not forget that all our freedoms and lofty ideas have meaning only if Indian State is strong. Statutory postions must have certain power for which they are answerable to People thorugh parliament only and which are beyond questioning by individuals.
Dr.Subramanian Swamy is like one man army fighting the corruption, and it is paradoxical the main opposition party, the BJP is taking the credit for the Supreme Court judgment while forgetting the innumerable scams it got involved in Karnataka and their own delaying tactics in dealing with corruption at high places. The full credit goes to Dr.Swamy who he had single handedly pursued this case and obtained this landmark judgment from the Supreme Court which is beneficial to one and all in this country. This aspect, however is not properly reflected in your otherwise brilliant editorial.
The media is afraid of fixing the responsibility on the head of the
government which is the PM Manmohan Singh. It seems Indian media has
lost teeth and many journalists have become puppets of congress party.
Its a sad commentery on the state of affairs in India.
The general public may welcome the trail-blazing judgment heratly. The Orwellian inequality syndrome plagues of our society. The judgment is in consanance with the essence of democratic principles and serves to put and end to the highhanded behaviour of the ministers and bureaucrats. Their reprehensible body language and public utterences these days border sheer rowdyism. Mr. Subramanian Swamy must be congratualed for his efforts to elicit from the apex court such landmark judgments.
"The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite." (THOMAS JEFFERSON) "Those who have been once intoxicated with power and have derived any kind of emolument from it can never willingly abandon it." (EDMUND BURKE) "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." (JAMES MADISON)"The greatest tyrannies are always perpetrated in the name of the noblest causes." (THOMAS PAINE)"No man is entitled to the blessings of freedom unless he be vigilant in its preservation." (DOUGLAS MACARTHUR)
LONG MAY PROSPER THE REPUBLIC OF INDIA IN PEACE WITH FREEDOM AND EQUALITY!
The Supreme Court decision is a welcome decision which will thwart the attempt of the government to protect corrupt politicians swindling public money. If a time limit is given for the government to give or deny sanction, the same principle should be applicable to politicians who are being tried for corruption. Take the case of Chief Minister of Tamilnadu who has been delaying the trial in a court for many years by filing appliations after applications. Law should be amended such that the court renders judgments in corruption cases against politicians are completed within set time limits.
Many thanks to the Honourable Supreme Court for a landmark verdict.
Everyone will agree with the views expressed in the editorial.Everyone
is equal before law but the people with political influence interfere
with this principle with impunity and derail the course of law. The
competent authorities should not take more time than it is absolutely
required to accord sanction for prosecution or reject the request for
prosecution with valid reasons and on no account sit on the case
indefinitely and thus prevent the course of law taking its proper
course.One would suspect that PMO office in this case sat on the case
without according its sanction because of the 'Coalition dharma" This
is obvious. Here one can suspect that political influence has played
its undesirable role. Anyway Mr Swamy has secured a valuable ruling
from the Apex court in the case and it would serve well for similar
cases in future. We wish the Government take the court ruling in
proper spirit and do not try to attribute motives for this timely
judgement .Satyameva Jayathe !
You are absolutely right that there should be no two sets of laws governing private citizens and people in power. It is easy to prosecute, and punish a clerk who takes a bribe of a mere hundred rupees. However people who are in power (who have amassed millions) can not be tried in a court of law, without the prior sanction of the government, which as you say, either delayed and more often denied.
I do not know when the law relating to "prior sanction" for prosecuting a "public servant" was passed. That said, the idea behind this law seems to protect those rich, and powerful who have amassed untold wealth by dubious means.The government seems to be hellbent on keeping this system alive, for the mutual benefit of the protector and the protected. The supreme court's decision may be the first step to dismantling this system. We have miles to go before this is done, but we have taken our first baby steps. Kudos to the Supreme court on this landmark judgement.
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